Halifax County NcArchives Court.....Morgan, V. Purnell 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 8:18 pm
Source: Nc Reports Vol 11, 1897
Written: 1825
MORGAN v. PURNELL.
From Halifax.
Common reputation in the family, is admissible as evidence of a marriage in
that family; and it seems that the declarations of a member of that family,
are evidence of such common reputation; but such declarations must have been
made before any contest had arisen relative to such marriage.
This was an action of detinue for slaves, tried below before Donnell, Judge.
The plaintiff claimed title under a parol gift from his mother, Ann Gunter,
made prior to the year 1806, and offered evidence to establish the fact of
such a gift. The mother was living with Peter Morgan, the father of the
plaintiff, at the time of the alleged gift, but was not his wife at that time.
Defendant contended that plaintiff's mother was afterwards married to Peter
Morgan, and defendant claimed the slaves under two bills of sale, one from the
executors of Peter Morgan to Wilson Carter, bearing date 19th of May, 1812,
and reciting a consideration of $470; the other from Wilson Carter to
defendant, dated 26th of April, 1813, and reciting a consideration of $400;
there was no evidence but these recitals, of the payment of the purchase money
mentioned in the bills of sale. Wilson Carter was dead; the witness to the
bill of sale last mentioned was examined, but had no recollection of the
transaction. It was proved that both
11-12
the executors of Peter Morgan had removed from the state, and the witness to
the bill of sale which they had made was also a resident of another state.
For the purpose of proving the marriage of Peter Morgan withi plaintiff's
mother, defendant offered to read (96) the deposition of one Mary Daggett
which was admitted to have been regularly token; but was objected to on behalf
of the plaintiff as containing only the declarations of the person under whom
the defendant claimed, and made subsequently to the plaintiff's title derived
from her. The objection was sustained. The deposition was as follows:
"I know nothing of my knowledge, only that she, Mrs. Morgan, told me herself
that she and Mr. Peter Morgan were married.
"I know nothing of any gift for Member; T only heard the report of the
neighborhood that Anna Gunter gave Rose to Peter, her son; and I was at the
house of Mr. Morgan about six months before his death, and he talked of making
his will; and Mrs. Morgan requested him to give the negroes that came by her
to her children."
Defendant then offered other evidence of the marriage. Plaintiff's mother
survived her husband, Peter Morgan.
There was a verdict for the plaintiff, and defendant moved for a new trial, on
the ground that the deposition of Mary Dagget was improperly rejected. A new
trial was refused, and from the judgment rendered defendant appealed to this
Court.
Badger, for the appellant.
Gaston and Seawell, for appellee.
Hall, Judge.—It cannot be contended that the Judge erred in rejecting that
part of the deposition which states, that about six months before Morgan's
death, Mrs. Morgan requested him to give to her children the negroes that came
by her, because, if it had any effect at all, it would have the improper
tendency to invalidate the parol gift made by Mrs. Morgan herself, and under
which the plaintiff claims title.
With respect to the other part of the deposition, it is very true that the
declarations of husband or wife may be received to prove whether they were
married or not; but it must appear that such declarations have not been (97)
made at a time or with a view to serve any particular purpose. (Norris' Peake,
23.) In this case, it does not appear when Mrs. Morgan told the witness that
she and Mr. Morgan were married; it might have been, for ought that appears,
before or after the commencement of this suit. For these reasons, I cannot say
that the Judge erred in the rejection of this deposition. The rule for a new
trial should be discharged.
Henderson, Judge.—Common reputation in the family is admissible as evidence of
a marriage in that family; and it is said that the declarations of an
individual of that family, are evidence of that common reputation. But such
declarations must have been made before any contest had arisen in regard to
the marriage. It is necessary that they should have been made not only without
any view of benefiting the person making them, but also without a view of
benefiting any other; that they should have flowed from a desire only of
speaking the truth, which all are presumed to have, when there is no motive to
declare the contrary. The person, therefore, who offers such declarations,
must show that they were made under such circumstances; it is a prerequisite
to their admissibility. It not appearing that those made in the presence of
Mrs. Dagget were made under such circumstances, they must be rejected; for
ought that appears to the contrary, they might have been made on the very day
on which her do position was taken, and with a view to this contest, to aid a
purchaser under her husband's executors to increase her legacy, or the fund
for the payment of debts, or other legacies, whereby her legacy would be the
better secured to her. At all events it does not appear to have been made ante
litem motam.
The declarations cannot be received as coming from one privy in estate, for
she had parted with her estate in the negroes before they were made; the
plaintiff is therefore not a privy in the estate which she then had.
As to the other ground of objection, to wit, that (98) it tends to invalidate
an act which she had done, I know of no such rule of exclusion. The maxim nemo
audiendus est allegare suam turpitudinem, is applicable to parties, and not to
witnesses. If a person is not infamous, or interested in the event of the
cause, he is competent; if his testimony tends to impeach an act which he has
done, it goes to his credit.
The deposition must be rejected for the reasons first mentioned.
As I have not considered, so I express no opinion, on what effect such
subsequent marriage, and sale by the husband or his executors, would have upon
the previous parol gift of a slave by the wife, under our act of 1784, or any
other law.
The Chief Justice assenting as to the reasons for rejecting the deposition.
Judgment affirmed. Approved. Smith v. R. R., 68 N. C., 107; Hodges v. Hodges,
106 N. C., 374.
Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897
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